When Does Privacy Become Censorship?

WASHINGTON —
The ruling in recent days by Europe’s highest court that individuals have the right to ask search engines to remove links with personal information is about as big – and unclear – as they come.

Industry analysts and executives on both sides of the Atlantic say the decision could fundamentally alter how search engines work and how people find and access information online.

In ruling that individuals have a “Right to be Forgotten,” the European Court of Justice posited a new fundamental right that some worry will trump others’ rights to free expression.

Left unanswered are the many questions about who, how and on what basis can people limit their exposure on the Internet, and when limiting personal information may slide into censorship.

And even more, the decision now seemingly puts the European Union and the United States at political loggerheads, threatening the foundational principles governing the Internet.

González owned back taxes and as a result his house was put up for auction and sold.

The stories cited local public notices and their accuracy is uncontested.

More than a decade later, González said he was “embarrassed” that a Google search of his name resulted in links to the archived stories.

He petitioned to have both the stories and the links taken down.

Over four years the case worked its way first through the Spanish, and then through the European court systems, finally ending up at the European Court of Justice, the highest tribunal governing all member states of the European Union.

On May 13, the 13 judges hearing the case ruled that while the two news stories could be maintained online as long as La Vanguardia liked, Google could not show those links to any search concerning Mr. González.

In effect, while the articles were still out there online, Google would have to pretend its search engine didn’t see them.

Online privacy advocates hailed the decision.

“People like to be able to control information themselves,” said Marc Rotenberg, executive director of the online civil liberties group the Electronic Privacy Information Center.

“Privacy is one of those issues people care very strongly about. They do like the services that are offered such as Google. But I think they also have the sense that not enough has been done to safeguard privacy.”

He told VOA he considers the decision “significant” and “a good starting point.”

Google views the matter very differently.

“A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know,” Google CEO Eric Schmidt told a shareholders meeting this week. “From Google’s perspective that’s a balance. Google believes, having looked at the decision which is binding, that the balance that was struck was wrong.”

The so-called “Right to be Forgotten” has been debated in Europe for over a decade. But with this ruling it seems the debate may be closing and the “Right” is becoming policy.

One of its principal advocates is European Commission Vice President Viviane Reding, who is pushing for the right to be enshrined in newly proposed data protection laws.

“Today's Court Judgement [sic] is a clear victory for the protection of personal data of Europeans!” Ms. Reding posted on her Facebook page after the ruling. “Today's judgment is strong tailwind for the data protection reform that the European Commission proposed in January 2012 as it confirms the main pillars of what we have inscribed in the data protection Regulation.”

Others aren’t so sure.

Writing in 2012 in the Stanford Law Review, George Washington University Law Professor Jeffrey Rosen took a dismal view of the proposed “Right to be Forgotten”, warning that it would put the EU, with its emphasis on privacy, and the US, which highly prizes free expression, in conflict

“It could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet,” he wrote.

Search or censorship engines

“It’s sensible to say in light of this ruling that something has to give. So the question is: on which side of the ocean will that give happen?” asked University of Michigan Law Professor in Practice Len Niehoff.

Niehoff’s concentrations are media law and the First Amendment. He says the ruling rests on a “dangerous and deeply flawed approach.”

With U.S. and EU law regarding speech and privacy protections increasingly in opposition, he speculates this ruling will make itself felt for a long time to come.

“There’s an argument to be made that it will be experienced here with increased tensions between privacy and free expression interests, and I think it may be experienced there with greater pressure on various states to pass laws that are more accommodating of free expression,” he said.

Among his primary concerns, Niehoff told VOA he’s focusing on two aspects of the ruling.

“The first is that it finds search engines to be data controllers for purposes of European privacy law,” Niehof said. He calls this finding very significant, because search engines don’t control third-party content, but rather connects materials.

Just as importantly, he said the ruling leaves many questions about just how and when such link removal requests should occur unanswered.

“It is spectacularly vague, and it is extraordinarily difficult to apply, and it is unthinkable that it can be applied in a consistent manner,” he said.

In the end, Niehoff said, the ruling transforms search engines like Google or Yahoo into “censorship engines” while at the same time applying standards that are “dramatically vague.”

Privacy advocate Marc Rotenberg said he understands the concerns about this ruling slouching toward something like censorship, but counters that the decision actually protects free expression.

“You have to consider the ability of individuals to control the dissemination of information about themselves,” he said. “This is in many respects the core of freedom of expression: how we chose to express ourselves or not to say things or do things.”

But the ruling may have very tangible effects.

“This [ruling] results not only in legal tensions but political tensions now” Niehoff said. “A number of commentators are already observing that this really escalates political tensions between countries and is creating a legal morass.”

The Snowden effect

“This decision is a step backwards in terms of innovation,” said Daniel Castro, a senior analyst with the International Technology and Innovation Foundation, a think tank and lobbying group associated with Internet industry giants.

“And it could have very real effects in terms of slowing investment and innovation,” he said.

Castro worries that the inverted priorities for the EU – privacy rights – and the U.S. – free expression – will limit cooperative ventures and new innovations between the two regions.

“I think resolving this is going to be very difficult,” Castro said. “To what extent will the EU try to impose its view on companies operating outside of Europe?

“A company like Google has a presence,” he said. “But other companies are clearly outside the EU jurisdiction. They don’t have a physical presence, they don’t have personnel or even computers, but the EU will still want to impose these kinds of rules.”

Analysts say one reason that the court has stepped up its privacy protections is something some are calling “the Snowden effect.”

Bennett Kelly, founder of the Internet Law Center, told VOA that there’s always been some skepticism in Europe of U.S. electronic espionage.

Last year’s NSA revelations leaked by Edward Snowden put a chill on U.S. – EU relations.

“There's already skepticism in Europe because of that, and then you throw in Snowden, it creates more distrust. Having one more element of differentiation between the U.S. and EU is just not helpful," he said.

Questions and more questions

There are, of course, deeper issues untouched by the ruling. For example, what happens to all the offending personal information already published online that search engines won’t be allowed to list?

The answer is probably nothing.

Just as La Vanguardia can keep its articles available online for as long as it likes, the thousands of an individual's data points of semi-personal information will likely continue to exist on the Internet, assuming you can find them.

Or what if one person requests Google to stop linking to a story that mentions him, but another person wants Google to link to the very same story that mentions them?

Will convicted felons be able to petition to virtually erase links to their past misconduct? Will the wealthy who can afford robust legal teams have more luck removing personal links than those less fortunate? The answers are uncertain.

While European Court of Justice rulings cannot be appealed to any higher authority, member nations and the EU itself can also enact legislation that expands, limits or modifies the exact parameters of what personal information individuals can control, and where the public’s right to free information trumps the right to be forgotten.

Which leads, in the end, to what must be one of the most ironic twists to a legal decision in recent memory.

Although Mr. Costeja González won his suit to have Google remove its links to those two “embarrassing” stories about him, this decision – replete with personal information – ensures that nobody will be able to forget about his tax and financial troubles ever again.

Doug Bernard covers cyber-issues for VOA, focusing on Internet privacy, security and censorship circumvention. Previously he edited VOA’s “Digital Frontiers” blog, produced the “Daily Download” webcast and hosted “Talk to America”, for which he won the International Presenter of the Year award from the Association for International Broadcasting. He began his career at Michigan Public Radio, and has contributed to "The New York Times," the "Christian Science Monitor," SPIN and NPR, among others. You can follow him @dfrontiers.